When Douglas W. Kmiec endorsed Senator Barack Obama for president last spring, it made waves, especially among Roman Catholics.

A constitutional scholar who headed the Office of Legal Counsel under Presidents Ronald Reagan and George Bush, Mr. Kmiec was well known as an articulate opponent of abortion.

He explains his current stance in “Can a Catholic Support Him?
Asking the Big Question about Barack Obama,” which will be published in
two weeks by Overlook Press. But reached this week in Denver, Mr. Kmiec
agreed to give necessarily brief replies to questions sent by e-mail.

Q. What is your position on the morality of abortion, and how is it related to your religious faith?

A. I fully accept the teaching of the
church that participating in an abortion is an intrinsic evil. My
acceptance of abortion as a grave, categorical wrong is one part
respectful deference to authoritative Catholic teaching and one part
reasoned deduction from our scientific knowledge of genetics and the
beginning of an individual life.

Q. Would you like to see Roe v. Wade overturned?

A. Yes, but not on the terms usually
suggested by Republicans. Roe is mistaken constitutional law not just
because it invalidated state laws on the subject but because it is
contrary to what is described as a self-evident truth in the
Declaration of Independence, namely, that we have an unalienable right
to life from our creator. It may surprise the general citizenry that
not a single sitting justice utilizes the declaration as a source of
interpretative guidance.

But even employing the jurisprudential methods applied by the
modern court, there is no satisfactory showing that abortion as a
matter of custom and tradition was properly found to be an implied
aspect of the liberties protected by the 14th Amendment.

Q. Given those views, why do you support Barack Obama?

A. There is a widespread misconception
that overturning Roe is the only way to be pro-life. In fact,
overturning Roe simply returns the matter to the states, which in their
individual legislative determinations could then be entirely
pro-abortion. I doubt that many of our non-legally-trained pro-life
friends fully grasp the limited effect of overturning Roe.

Secondly, pundits like to toss about the notion that the future of
Roe depends on one vote, the mythical fifth vote to overturn the
decision. There are serious problems with this assumption: first,
Republicans have failed to achieve reversal in the five previous times
they asked the court for it; and second, it is far from certain that
only one additional vote is needed to reverse the decision in light of
the principles of stare decisis by which a decided case ought not to be
disturbed. Only Justices Thomas and Scalia have written and joined
dissenting opinions suggesting the appropriateness of overturning Roe.

So given those views, the better question is how could a Catholic not support Barack Obama?

Senator Obama’s articulated concerns with the payment of a living
wage, access to health care, stabilizing the market for shelter,
special attention to the needs of the disadvantaged and the importance
of community are all part of the church’s social justice mission.

Applying this to the issue of abortion, the senator has repeatedly
indicated that he is not pro-abortion, that he understands the serious
moral question it presents, and, most significantly, that he wants to
move us beyond the 35 years of acrimony that have done next to nothing
to reduce the unwanted pregnancies that give rise to abortions.

Q. But all the same, isn’t your support at odds with Catholic teaching?

A. Quite the contrary. Senator Obama is
articulating policies that permit faithful Catholics to follow the
church’s admonition that we continue to explore ways to give greater
protection to human life.

Consider the choices: A Catholic can either continue on the failed
and uncertain path of seeking to overturn Roe, which would result in
the individual states doing their own thing, not necessarily, or in
most states even likely, protective of the unborn. Or Senator Obama’s
approach could be followed, whereby prenatal and income support, paid
maternity leave and greater access to adoption would be relied upon to
reduce the incidence of abortion.

It is, of course, not enough for a Catholic legislator to declare
himself or herself pro-choice and just leave it at that, but neither
Senator Obama, who is not Catholic except by sensibility, nor Joe Biden, who is a lifelong Catholic, leaves matters in that unreflective way.

In my view, Obama and Biden seek to fulfill the call by Pope John Paul II,
in the encyclical “Evangelium Vitae,” to “ensure proper support for
families and motherhood.” It cannot possibly contravene Catholic
doctrine to improve the respect for life by paying better attention to
the social and economic conditions of women which correlate strongly
with the number of abortions.

Q. You have been fiercely attacked by some
Catholic abortion opponents and in one instance barred from receiving
communion. How do you feel about that?

A. To be the subject of an angry homily at
Mass last April 18 and excoriated as giving scandal for endorsing
Senator Obama and then to be denied communion for that “offense” was
the most humiliating experience in my faith life.

To be separated in that public manner from the receipt of the
eucharist, and to be effectively shunned or separated from the body of
Christ in the sense of that particular congregation, has left, I very
much regret to say, a permanent spiritual scar. Thankfully, it has also
given me a new appreciation for the significance of the sacrament in my
daily worship. And the priest, having been called to order by Cardinal Roger Mahony, sent me an apology, which of course I have accepted.

Nonetheless, I remain deeply troubled that other church leaders not
fall into similar traps. That would do untold damage to the church
within the context of American democracy.

There are clearly partisan forces that want nothing more than to
manufacture or stir up faith-based opposition to their political
opponents. The church has been careful to underscore that Catholics
have unfettered latitude to vote for any candidate so long as the
intent of the Catholic voter is not to express approval of a grave
evil.